Twenty Years Since the Last Scheduled Execution in California and a Focus on the Participation of Physicians in Executions

February 21, 2006, a California court’s deci­sion effec­tive­ly halt­ed the planned exe­cu­tion of Michael Angelo Morales, mark­ing the start of California’s 20-year mora­to­ri­um on exe­cu­tion sched­ul­ing and throw­ing into the spot­light the ten­sion between physi­cian par­tic­i­pa­tion in exe­cu­tions and their pledge to show ​“the utmost respect for life.” 

Weeks before his sched­uled exe­cu­tion at 12:01 a.m. on February 21, 2006, Mr. Morales, along with oth­er pris­on­ers on California’s death row, brought a legal chal­lenge in fed­er­al dis­trict court to the state’s planned method of exe­cu­tion. At the time, California used a three-drug approach to lethal injec­tions. California’s method began with injec­tion of a seda­tive, sodi­um thiopen­tal, to ren­der the pris­on­er uncon­scious. Next, a par­a­lyt­ic drug, pan­curo­ni­um bro­mide, was inject­ed, which was intend­ed to par­a­lyze the mus­cle sys­tem and stop the prisoner’s breath­ing. Finally, the injec­tion of potas­si­um chlo­ride was used to stop the heart. Death should result from an anes­thet­ic over­dose caus­ing res­pi­ra­to­ry and car­diac arrest, while the pris­on­er is unconscious. 

Mr. Morales argued that the com­bi­na­tion of drug choic­es and the pro­ce­dure by which the drugs would be admin­is­tered — absent any over­sight by med­ical­ly trained per­son­nel — cre­at­ed a ​“a fore­see­able and undue risk” that he would expe­ri­ence unnec­es­sary pain in vio­la­tion of the Eighth Amendment’s pro­hi­bi­tion on cru­el and unusu­al pun­ish­ment. During the evi­den­tiary hear­ing on his claim, Mr. Morales’ attor­neys high­light­ed state records that indi­cat­ed at least six indi­vid­u­als lethal­ly inject­ed in California had pos­si­bly been con­scious pri­or to receiv­ing the sec­ond and third drugs. In response, on February 14, 2006, Federal District Court Judge Jeremy Fogel gave the state two options: either address Mr. Morales’ con­cern about the three-drug pro­to­col, or have med­ical experts on hand to ver­i­fy that Mr. Morales was uncon­scious pri­or to admin­is­trat­ing the sec­ond and third drugs in the pro­to­col. The state chose the sec­ond path, and two anes­the­si­ol­o­gists were hired to per­form that function.

However, both physi­cians recused them­selves just hours before Mr. Morales’ sched­uled exe­cu­tion after learn­ing they were expect­ed to assist direct­ly with the exe­cu­tion. Professor Denno reminds, “[a]s Judge Fogel would lat­er explain, there had been ​‘a dis­con­nect’ between the anes­the­si­ol­o­gists’ and the courts’ ​‘expec­ta­tions’ of what the doc­tors’ roles should be.” After addi­tion­al evi­den­tiary hear­ings in the fall of 2006, Judge Fogel ruled in December 2006 that California’s lethal injec­tion pro­to­col was prob­lem­at­ic in that it could lead to uncon­sti­tu­tion­al out­comes. California has not sched­uled the exe­cu­tion of any­one since. Governor Gavin Newsom enact­ed an offi­cial mora­to­ri­um of the death penal­ty in March 2019. 

The con­se­quences of the deci­sion were sig­nif­i­cant. Professor Denno empha­sizes that, “[i]mmediately, med­ical soci­eties protest­ed the Morales court’s rec­om­men­da­tion and the eth­i­cal quan­daries it posed.” According to Professor Denno, the American Medical Association, the American Society of Anesthesiologists, and the California Medical Association were ​“unit­ed in their oppo­si­tion to doc­tors joining executioners.” 

Mr. Morales’ law­suit inspired sim­i­lar lit­i­ga­tion nation­al­ly, includ­ing Baze v. Reese (2008), in which the Supreme Court upheld Kentucky’s sim­i­lar three-drug pro­to­col, and laid the legal frame­work for pris­on­ers to show an Eighth Amendment vio­la­tion of a method of execution.